BIA Remands of Immigration Judge Madline Garcia from 01/01/2014 to 05/26/2016

U.S. Department of Justice
Executive Office for Immigration Review
Falls Church, Virginia 20530
File: - Atlanta, GA
Decision ofthe Board ofImmigration Appeals
Date: JUL 31 2014
In re:
IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Chung H. Lee, Esquire
ON BEHALF OF DHS:
CHARGE:
Nichole Lillibridge
Assistant Chief Counsel
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8U.S.C.§l182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Remand; adjustment of status
The respondent is a native and citizen of Mexico. He appeals from a March 15, 2012,
Immigration Judge decision declining to accept late-filed documents and deeming abandoned his
I-601 form for waiver of inadmissibility and I-485 application for adjustment of status. The
Immigration Judge pointed out that, despite a specific warning that the failure to timely file
documents would be considered an abandonment of his applications, the respondent did not meet
the court-ordered deadlines. We will remand the record for further proceedings.
The respondent entered the United States without inspection on an unknown date. The
respondent filed an I-485 application for adjustment of status on November 13, 2006. Because
of the filing date, the respondent's claims are governed by the amendments to the Act brought
about by the passage of the REAL ID Act of2005. Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).
On October 15, 2009, the United States Citizenship and Immigration Services ("USCIS") denied
the respondent's application because he had failed to provide requested and required evidence of
eligibility. Specifically, USCIS had requested evidence from the respondent on August 29, 2007,
and May 24, 2009, in the form of proof that he had paid all fines and completed all terms of
probation related to his arrests for driving under the influence ("DUI") on 1988,
, 1990, 1992,.and , 1997 (Exh. 4 at Tab A; Tr. at 2). On
January 14, 2010, the respondent was issued a Notice to Appear for removal proceedings (Exh.
1). On appeal of the removal order entered in March 2012, the respondent argues that the
Immigration Judge violated his due process rights by not accepting his documents into the record
and by deeming his relief applications abandoned. The respondent also submits numerous
documents on appeal and asks that we remand the record.
During the proceedings below, the Immigration Judge told the respondent that he would need
to give his attorney the needed documents so that they could be timely filed. The Immigration
Judge informed the respondent that the documents would not be accepted late and that an
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untimely submission would cause any application to be considered abandoned (Tr. at 4). In
addition, the Immigration Judge issued a written pre-trial order informing the respondent that he
had 30 days from the date of the April 1, 2010, order, to provide proof that his application had
been filed with users, and had until 30 days before the date ofthe hearing to file the application
and supporting documents with the court in order to avoid his applications being considered
abandoned (Exh. 3). See 8 C.F.R. § 1003.21(b).
On August 25, 2011, the Immigration Judge accepted into evidence without objection the
Department of Homeland Security's;' (''DHS") copies of the I-485 denial letter and the
respondent's 2006 adjustment of status application and supporting documents, which DHS had
initially filed with the Immigration Court in November 2010 (Tr. at 7; Exh. 4). On March 9,
2012, the respondent moved to continue proceedings, asserting that he had not been able to
obtain or provide any of the requested additional docwnents (Tr. at 12; Exh. 5), which motion
the Immigration Judge denied. At the subsequent hearing on March 15, 2012, the Immigration
Judge pointed out that the respondent's assertion that DHS had not submitted copies of the old
application and denial Jetter was incorrect because DHS had filed them in November 2010 and
they were accepted into evidence in August 2011 (Tr. at 12-15). The Immigration Judge also
pointed out that it was the respondent's burden and not DHS's to provide evidence regarding the
DUI convictions (Tr. at 13-14). The respondent's counsel attempted to proffer all the requested
documents at the hearing, asserting that the respondent only had given him the documents a few
days before. The respondent admitted that he had not provided his attorney with the necessary
documents until 3 days previously (Tr. at 12-13, 16-17, 21; I.J. at 2). The Immigration Judge
then deemed the respondent's applications abandoned because he had failed to follow the
Immigration Judge's orders regarding timely submission of documents (Tr. at 21; I.J. at 2-3).
We are not persuaded by the respondent's argument that the Immigration Judge violated his
right to due process by declining to accept his late-filed documents. Specifically, the respondent
had been on notice since 2007 that USCIS needed documents related to his DUI convictions, and
he had had since April 2010 to submit those and other documents to the Immigration Judge. The
respondent provided no reasonable explanation for his failure to follow the Immigration Judge's
orders or for his untimely submission ofthe requested documents for the proceedings. Thus, the
Immigration Judge's decision to decline to accept the late-filed docwnents was proper. 8 C.F.R.
§ 1003.3I(c). This did not constitute a due process violation or undermine the fundamental
fairness of the proceedings because the respondent had years to submit the requested materials
and no adequate excuse for not timely providing them. Matter ofG-, 20 I&N Dec. 764, 780-81
(BIA 1993); see also Matter ofInteriano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010).
Nevertheless, we will remand the record in order for the Immigration Judge to adjudicate the
respondent's applications for relief. The Board has concluded in a precedential decision that
when an application for relief is timely filed but the supporting docwnents are not filed within
the ordered time frame, then an Immigration Judge may deem the opportunity to file the
supporting documents waived, but may not deem the application itself abandoned. Matter of
Interiano-Rosa, supra, at 266. As discussed above, the Immigration Judge properly declined to
accept the respondent's late-filed supplementary documents. But instead of deeming abandoned
the respondent's applications for adjustment of status and waiver of inadmissibility, the
Immigration Judge should have determined what effect the respondent's failure to submit the
requested documents had on his to meet his burden of proof and whether he merits relief
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in the exercise of discretion. Id. The respondent should have been allowed to have a merits
hearing on at least the applications and documents that were timely submitted. Id. Thus, we will
remand the record for further proceedings on the merits of the respondent's already-filed
applications for relief. We reach no conclusions regarding the respondent's eligibility for relief.
The Immigration Judge has discretion on remand to decide whether to consider the respondent's
untimely documents.
Finally, we note that the respondent submitted numerous documents on appeal. The
respondent also asks that, in view of these documents, we remand the proceedings in order for
him to have a hearing before the Immigration Judge on the merits of his applications for relief.
We already are remanding for a hearing, but conclude that the Immigration Judge has discretion
as to whether to consider these additional documents on remand. We thus need not further
address the merits ofthe respondent's remand request.
Accordingly, the following order will be issued:
ORDER: The record is remanded for further proceedings consistent with this order, and for
the entry of a new decision.
FOR THE BOARD
.j!
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I
U.S. l)epartment of Justice
' .
File: -Atlanta, GA
In re:
APPEAL
Decision of the Board of Immigration Appeals
Date:
JUN - 22014
ON BEHALF OF RESPONDENT: Luis Alemany, Esquire
ON BEHALF OF DHS: Tracy Short
Assistant ChiefCounsel
APPLICATION: Cancellation ofremoval under section 240A(b); voluntary departure
Tue respondent, a native and citizen of Mexico, appeals from the lmmigration Judge's
October 5, 20I2, decision. In that decision, the Inunigration Judge denied the respondent's
application for cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b). In addition, the Immigration Judge denied the
respondent's application for voluntary departure under section 240B(b) of the Act, 8 U.S.C,
§ I229c(b). The appeal will be dismissed, in part. The record will be remanded.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discreiion, and judgment, and all other issues, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii).
We agree with the conclusion reached by the Immigration Judge that the respondent did not
establish his eligibility for cancellation of removal. See section 240A(b) of the Act. In this
regard, although the Immigration Judge discussed a number of adverse factors including the
respondent's criminal history and equivocal tax filings, the Inunigration Judge did not
conclusively reach whether these factors precluded the respondent from the establishing the
requisite good moral character for relief(LJ.at 4, IO, IS). See section 240A(b)(l)(B) of the Act.
Regardless, we need not reach the foregoing detennination as the Immigration Judge's further
determination that the respondent did not establish that his qualifying relatives - his United
States citizen children - would face exceptional and extremely unusual hardship if he were
removed to Mexico is fully dispositive in this case (l.J. at 15). See generally Matter ofRecinas,
23 J&:N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002);
Matter ofMonreal, 23 l&N Dec. 56 (BIA 2001).
It is the respondent's burden to prove the requisite hardship. See section 240A(b)(l)(D) of
the Act. In this regard, among other hardship factors, the Immigration Judge acknowledged the
educational concerns of the respondent's two oldest children (l.J. at 4; Exh. 6). However, we
find no clear error in the Immigration Judge's findings that those needs have been addressed and
the respondent and his wife are satisfied with the children's progress (I.J. at 6, 12-13). See
8 C.F.R. § 1003.l(d)(3)(i). We agree with the Immigration Judge that whether the children
remain in the United States or whether they return to Mexico upon the respondent's removal, the
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record does not establish that either of the children has a "compelling educational need" (I.J. at
13). See Matter ofMonreal, supra, at 63.
The Immigration Judge also addressed the respondent's concerns for his children because of
the crime and violence in Mexico (I.J. at 13-15). However, as noted by the Immigration Judge,
the respondent testified that he was not intending to have his children return with him to Mexico
(I.J. at 14). Regardless, the Immigration Judge also noted that the respondent is free to relocate
to any part of Mexico, away from his hometown purportedly affected by a high rate of crime (l.J.
at 14). On this record, the respondent did not establish that such circumstances would create
exceptional and extremely unusual hardship for his United States citizen children.
In sum, the record does not establish that the hardship to the respondent's qualifying relatives
resulting from the respondent's removal would be substantially beyond that which normally
results from the removal ofa family member. Id
Finally, although the Immigration Judge was otherwise inclined to grant the respondent's
application for voluntary departure, the Immigration Judge declined to do so in the absence of an
updated biometric (fingerprint) report (I.J. at 15-16). In this regard, and contrary to the
respondent's argument on appeal, the failure to comply with the biometrics requirement may be
a proper basis for denying most applications for relief, including voluntary departure. See
8 C.F.R. § 1003.47(d) (providing that the failure to comply with the fingerprint procedure within
the time allowed by the Immigration Judge constitutes abandonment of the application).
However, it does not appear from the record that the required notice, instructions, and
consequences for failing to comply with the biometric requirement were provided to the
respondent. Considering the circumstances, the record will be remanded to the Immigration
Judge to provide the respondent the opportunity to provide an updated biometric report and
provide both parties tbe opportunity to address the respondent's eligibility for voluntary
departure.
Accordingly, the folloVving orders will be entered.
ORDER: The appeal from the denial of the application for relief under section 240A(b) of
the Act is dismissed.
FURTHER: The record is remanded to the Immigration Judge for further proceedings
consistent with this order.
.- ")z- S2
. FORT BOARD
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Jixecutive Office for Immigration Review
File: - Atlanta, GA
In re:
APPEAL
ON BEHALF OF RESPONDENT: Pro se1
ON BEHALF OF DHS: Sirce E. Owen
Date: JUN 02 2014
APPLICATION: Cancellation of removal under section 240A(b); remand
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated October 9, 2012, deeming abandoned his application for cancellation of removal
under section 240A(b)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(I). We
review an Immigration Judge's findings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003. l(d)(3)(i), (ii). We will
remand the record to the Immigration Judge for further proceedings.
The respondent filed his application for cancellation of removal on July 17, 2006. He also
filed extensive documentary evidence in support of his application. However, despite the
Immigration Judge's repeated advisals that he was required to file a criminal history chart and
dispositions of all his arrests, the respondent failed to provide a complete record of conviction.2
The Immigration Judge found that absent such evidence, the respondent did not establish his
statutory eligibility for relief. The Immigration Judge deemed the respondent's application for
cancellation of removal abandoned.
As an initial matter, we consider the respondent's assertion that the record should be
remanded for a full hearing on his application for cancellation of removal. We have held that
while the failure of an applicant to file certain documentary evidence by a deadline set by the
Immigration Judge may support a decision to exclude the specific untimely documents from the
evidentiary record, it cannot support a decision by the Immigration Judge to deem as abandoned
the timely filed underlying application without conducting an evidentiary hearing on the merits.
Matter of Interiano-Rosa, 25 l&N Dec. 264 (BIA 20 I0). Therefore, we conclude that the
Immigration Judge erred in deeming abandoned the respondent's application for cancellation of
removal, without first analyzing whether he was statutorily eligible given the evidence of his
criminal convictions.
1
On March I I, 2014, the attorney who filed the Notice of Appeal and brief, Michaelangelo
Rosario, was suspended from the practice of law before this Board, the Immigration Courts, and
the Department of Homeland Security.
2
The respondent did file some documentation of his criminal history (Exh. 12); additional
evidence was provided by the Department of Homeland Security (Exh. 14).
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Accordingly, we will remand proceedings for the Immigration Judge to evaluate, under the
existing record, whether the respondent is statutorily eligible for relief. The record reflects that
the respondent has a 2000 conviction for domestic battery in violation of 720 Ill. Comp. Stat.
§ 5/12-3.2 (Exh. 12 at 358); a 2005 conviction for battery-touch or strike, in violation of Fl. Stat.
§ 784.03 (Exh. 14 at 1-3); and a 2005 conviction for providing a false name to a law enforcement
officer, in violation of Fl. Stat. § 901.36 (Exh. 14 at 4-5). We note that the record reflects the
respondent's 2010 arrest did not result in a conviction (Exh. 12 at 362, 364). The Immigration
Judge should apply the categorical approach and, if necessary, the modified categorical approach
to determine whether any of the respondent's offenses precludes him from demonstrating
eligibility for cancellation of removal. See Descamps v. United States, 133 S.Ct. 2276, 2281
(2013) (application of the modified categorical approach is appropriate when the statute of
conviction "sets out one or more of the elements in the alternative"); Shepard v. United States,
544 U.S. 13 (2005). We note that the respondent bears the burden of establishing his statutory
eligibility for relief. See section 240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i);
8 C.F.R. § 1240.8(d).
Accordingly, the following order will be entered.
ORDER:. The Immigration Judge's decision is vacated and the record is remanded to the
Immigration Judge for further proceedings consistent with the foregoing opinion and the entry of
a new decision.
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Falls Church, Virginia 20;30
File: - Atlanta, GA
In re:
APPEAL
Decision ofthe Board oflmmigration Appeals
Date:
ON BEHALF OF RESPONDENT: Liliana Loftman, Esquire
ON BEHALF OF OHS: Sirce E. Owen
APPLICATION: Adjustment ofstatus
The respondent has appealed from the Immigration Judge's decision dated October 9, 2012.
The Immigration Judge found that the respondent abandoned his application for adjustment of
status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255. The
respondent's appeal will be sustained.
We review an Immigration Judge's findings of fact for clear error; but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
§§ 1003.J(d)(3)(i), (ii). Because the respondent's application was filed after May 11, 2005, it is
subject to the REAL ID Act of2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231.
The respondent timely filed an application to adjust status (Form I-485) based on an
approved visa petition (Form I-130) submitted by his current wife (Exh. 8). Based upon the
respondent's failure to file certain corroborating tax records by the deadline set by the
Immigration Judge, the Immigration Judge held that the respondent abandoned the application
for adjustment of status and ordered him removed to Ghana.
We have held that where an application for relief is timely filed but supporting documents
are not submitted within the time established, the Immigration Judge may deem the opportunity ·
to file such documents to be waived, but may not deem the application itself abandoned. See
Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010). Although the respondent's
corroborating documents were not submitted and his opportunity to file the documents is waived,
his adjustment application should not be deemed abandoned. See Matter of Interiano-Rosa,
supra. Under these circumstances, we will vacate the Immigration Judge's decision. The record
will be remanded for further proceedings, including a continued hearing on the merits of the
respondent's application for adjustment of status and any other form of relief for which he may
be eligible. We express no opinion regarding the merits of the respondent's application.
Accordingly, the following order will be issued.
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ORDER: The appeal is sustained and the record is remanded to the Immigration Judge for
further proceedings consistent with the foregoing decision.
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r
" l
U.S. Department ofJustice
falls Church, Virginia 20530
File: -Atlanta, GA
Date: JUL 302014
In re:
APPEAL
ON BEHALF OF RESPONDENT: Michael Murray, Esquire
ON BEHALF OF DRS: Sirce E. Owen
APPLICATION: Cancellation ofremoval under section 240A ofthe Act; voluntary departure
In a decision dated October 30, 2012, the Immigration Judge denied the respondent's
application for cancellation of removal under section 240A(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b)(l), and further denied his request for voluntary departure
under section 240B(b) of the Act, 8 U.S.C. § 1229c(b). The respondent, a native and citizen of
Ecuador, has appealed from that decision. The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. §1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of hnmigration Judges de novo. 8 C.F.R. § 1003.l(d)(3)(ii); see also Matter ofA-S-B-,
24 i&N Dec. 493 (BIA 2008). The respondent's application for cancellation of removal was
filed after May 11, 2005. Thus, the amendments to the Immigration and Nationality Act by the
REAL ID Act of2005 are applicable.
We first note that the Immigration Judge found that it was "abundantly clear" that the
respondent's children would remain in the United States, and that the respondent has "no
intention" of taking his children with him to Ecuador (l.J. at 9-11). However, we find that
respondent's testimony was unclear whether his children would remain in the United States
because he testified that he did not want to break up his family, but he also did not want them
going to Ecuador (Tr. at 87-89). Thus, we do not agree with the Immigration Judge that the
respondent's testimony was "abundantly clear" that his family would remain in the United States.
Rather the testimony reflects some uncertainty on this issue.
We also are concerned with the Immigration Judge's comments that minimize the hardships
this family will face upon the respondent's removal (I.J. at 10-11). On appeal, the respondent
also asserts that his wife's testimony was cut off when she became emotional, and that the
Immigration Judge focused too much during the hearing on an incident in 1994, which resulted
in the respondent's arrest, but subsequent acquittal.
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Given these concerns with the Immigration Judge's conduct of the hearing, we find that a
remand for further consideration of the respondent's application for cancellation of removal is
appropriate. Moreover, if, upon remand, the Immigration Judge again denies cancellation, she
should then further consider the issue of voluntary departure. In her decision, the Immigration
Judge denied voluntary departure because she concluded that the respondent indicated that he
bad "no intention" of complying ·with any voluntary departure order (I.J. at 11-12). However,
the respondent did not testify that he would not agree to depart voluntarily, but that he did not
really know if he would depart voluntarily if given the opportunity (Tr. at 124). Based upon the
respondent's statement, counsel for the respondent asked the Immigration Judge if the
respondent could be qualified for voluntary departure at the next hearing. The Immigration
Judge stated that, "today's the moment he's going to be qualified" (Tr. at 124). Instead of
providing the respondent an opportunity to clarify his testimony or allowing him to be qualified
for voluntary departure at the next hearing, the Immigration Judge simply denied voluntary
departure (l.J. at 11-12; Tr. at 124-125). Accordingly, we find that a remand is also appropriate
for the respondent to be qualified for post-conclusion voluntary departure, ifnecessary.
ORDER: The record is remanded to the Immigration Court for further proceedings and the
entry ofa new decision consistent with the foregoing opinion.
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File: - Atlanta, GA
In re:
APPEAL
Date: AUG 14 2ill4
ON BEHALF OF RESPONDENT: Cornel Potra, Esquire
APPLICATION: Cancellation ofremoval
The respondent, a native and citizen of Mexico, appeals the October 30, 2012, decision of
the Immigration Judge denying his application for cancellation of removal under section 240A(b)
ofthe Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The record will be remanded.
The Immigration Judge's findings of fact, including the determination of credibility, are
reviewed for clear error. 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews de novo all other
issues including relevant questions of burden of proof and issues of discretion. 8 C.F.R.
§ I003.I(d)(3)(ii).
In denying cancellation of removal, the Immigration Judge found that the respondent did
not meet the exceptional and extremely unusual hardship or the good moral character
requirements for that relief. In finding no exceptional and extremely unusual hardship to any of
the respondent's six United States citizen children, the Immigration Judge emphasized that the
respondent married the mother of three of his biological children, who had two other children,
shortly before the removal hearing,. The Immigration Judge stated that, "[i]t appears to be very
convenient that at this time he has chosen to marry, because that would give him two additional
qualifying relatives." Dec. at 14. The Immigration Judge also noted that two of the respondent's
biological children were born after he was placed in removal proceedings, stating in this regard
that it "seems to me that most of the things that this respondent has done have been strategically
placed into building his case." Dec. at 14.
Although the Immigration Judge also added some discussion of hardship to the children, we
find that her comments regarding hardship warrant a remand for further consideration. In an
application for cancellation of removal, hardship to qualifying relatives is at issue. Comments
regarding the timing of a marriage that results in the respondent acquiring step-children, or
comments on the fact that children are born after proceedings have begun, are not appropriate to
assessing hardship to the children. As it appears that the Immigration Judge's hardship analysis
in this case was colored by her view of how and when the respondent acquired his qualifying
relative children, we conclude that remand for further analysis of the hardship issue is
appropriate.
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Similarly, we find that the Immigration Judge's comments regarding good moral character
require a remand. In discussing the respondent's good moral character, the Immigration Judge
again stated that such matters as the respondent's marriage and the births of some ofhis children
"were conveniently set up for an application for cancellation of removal." Dec. at 17. The
Immigration Judge also noted that the respondent's wife, parents, and most ofhis siblings are in
this country without status, matters not relevant to the respondent's character. Dec. at 18.
We recognize that there are some adverse factors of record that may reflect poorly on the
respondent's good moral character. However, none of these factors appears to statutorily bar a
finding of good moral character, and some of the events in question occurred outside the I0 year
period required for good moral character. There are also significant favorable factors here,
including the respondent's support of at least five of the citizen children, as well as support to
other extended family members when they have needed it. All these factors should be
considered in assessing the respondent's character. As we find that the Immigration Judge's
assessment was not properly balanced, a remand for further consideration of good moral
character is also necessary.
For these reasons, the record will be remanded to the Immigration Judge for further
consideration of the respondent's application for cancellation ofremoval. On remand, the parties
will have the opportunity to present additional evidence, including testimony. Accordingly, the
following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion, and for the entry of a new decision.
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U.S. Department of Jnstice
Decision ofthe Board of Immigration Appeals
File: -Atlanta, GA Date:
In re:
IN R.EMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Come! Potra, Esquire
ON BEHALF OF DHS: Gregory E. Radics
APPWCATION: Cancellation ofremoval
SEP C8
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated November 20, 2012. We review questions oflaw, discretion, andjudgmentarisingin
appeals from decisions ofImmigration Judges de novo, whereas we review findings offact in such
appeals under a "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3).
Tbe respondent challenges the Immigration Judge's conclusion that he has not established his
eligibility for cancellation ofremoval under section 240A(b) oftheImmigration and NationalityAct,
8 U.S.C. § 1229b(b), by demonstrating that either of his qualifying relatives - two United States
citizen children - would suffer exceptional and extremely unusual hardship upon the respondent's
removal. See Matter ofMonreal, 23 I&N Dec. 56 (BIA 2001). On appeal the respondent has
submitted new evidence that a third United States citizen child was born to him and his wife
subsequent to the Immigration Judge's decision.
In light of the birth ofthe respondent's third child, we vill remand the record for further fact-
finding and analysis ofthe hardship that his qualifying relatives would suffer upon his removal to
Mexico. On remand, the Immigration Judge should also (1) make a specific finding as to whether
the respondent's family will remain in the United States ifhe is removed and (2) considerthe entirety
ofthe obligations faced bythe respondent and his wife, as well as the couple's abilityto meet them if
the respondent departs the United States.
ORDER: The record is remanded for further proceedings.
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Files: - Atlanta, GA
In re:
APPEAL
ON BEHALF OF RESPONDENTS: H. Glenn Fogle. Jr., Esquire
ON BEHALF OF DHS:
CHARGE:
Kelley N. Sydnor
Notice: Sec. 237(a)(l)(A), l&N Act [8 U.S.C. § 1227(a)(l)(A)]-
Date:
[JAN 16
Jnadmissible at time of entry or adjustment of status under section
212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(J)) -
Immigrant - no valid immigrant visa or entry document
( only)
Sec. 212(a)(7)(A)(i)(J), J&N Act [8 U.S.C. § I!82(a)(7)(A)(i)(I)] -
( only)
APPLICATION: Asylum; withholding of removal; Convention Against Torture
On November 13, 2012, an Immigration Judge denied the lead respondent's application for
asylum as well as her request for withholding of removal and protection pursuant to the
regulations implementing the United States· obligations under the Convention Against Torture
("CAT"). The respondents, a married couple who are natives and citizens of Angola, now
appeal. 1
The appeal will be sustained. and the record will be remanded.
We review an Immigration Judge's findings of fact, including findings regarding witness
credibility, under a "clearly erroneous'' standard. 8 C.F.R. § 1003.l(d)(3)(i) (2014). We review
1
The male respondent is a rider on the lead respondent's application, but the record also
contains his application for withholding of removal (l.J. at 13: Exh. 3, 7). After filing the
Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge), counsel for the
lead respondent filed a motion to amend the Notice of Appeal to include the male respondent.
We will exercise our discretion, and grant the motion.
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et al.
all other issues, including questions of law, discretion, and judgment, under a de novo standard.
8 C.F.R. § 1003.l(d)(3)(ii). The respondents' applications were filed before May 11, 2005, and
thus, are not governed by the REAL ID Act. Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).
The lead respondent's claim is that she was persecuted because of her membership in the
Front for the Liberation of the Enclave Cabinda ("FLEC"J (Tr. at 83-84). She testified that in
2001, police officers arrested her and other individuals, including family members, for their
participation in an anti-government demonstration. She stated that she was beaten for
approximately 3 hours. When the police released the lead respondent, they cautioned her not to
participate in any more demonstrations against the government (l.J. at 4; Tr. at 85-88).
The second incident occurred on 2003, when soldiers broke into the lead
respondent's family's home. The lead respondent, her mother, and her sister hid in a back
bedroom, but soldiers killed the lead respondent's father and brother in the living room of the
house. After hearing the gun shots, the respondent and her other family members came into the
living room. Some soldiers took the mother and sister, while other soldiers took the lead
respondent (l.J. at 4-5; Tr. at 88-90. 111-18).
According to the lead respondent, after forcing her to walk 5 kilometers away from her
home, the soldiers raped her near a church, and left her. The next morning, church members
discovered the lead respondent where the soldiers left her. They took the lead respondent to a
military hospital, where she was treated for 16 days. The lead respondent claimed that she
suffered a gunshot wound when a bullet grazed her shoulder during the 2003,
incident (l.J. at 5; Tr. at 90-93. 94, 117-18, 119, 140-41).
The lead respondent testified that the church members decided to help her leave Angola.
They took her photograph and arranged for her to travel to the United States. One of the church
members, a man named traveled with her. Upon their arrival in New Jersey, called
the male respondent and instructed him to pick up the lead respondent (LJ. at 5-6; Tr. at 50, 53,
93, 95-98, 100-01, 118, 120-21, 162).
The lead respondent fears returning to Angola. She believes that she will be killed like her
father and brother (l.J. at 6; Tr. at 103-04).
The male respondent testified that his father appointed him to lead the youth delegation in
their church. In this capacity the male respondent preached about God and healing. In
I998, however, he preached about the evils of communism. He suggested that because of this
sem1on, government officials began to monitor him, and he became a military target
(l.J. at 13-14; Tr. at 153-54. 167).
The male respondent claimed that the youth delegation grew following the 1998
sermon. On 1998, soldiers arrested him and the vice-president of the youth
organization. During his detention, solders beat the male respondent, and threatened to kill him
if he spoke (l.J. at 14; Tr. at 154, 156-57).
2
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et al.
On , 1998, the male respondent was transferred to Namibia. A man named
(sometimes spelled in the record as '' "), who had
connections within the government, intervened and was able to secure the male respondent's
release. According to the male respondent, Mr. intervened because he was grateful to
the male respondent for saving his son's life. The son had been using drugs, but stopped his
destructive behavior after hearing one of the male respondent's sermons. In addition to securing
the male respondent's release, Mr. picked up the male respondent's passport from
family members. The passport contained an unused visa to the United States, and the male
respondent was able to travel to this country (I.J. at 14-15; Tr. at 154-55, 157-59).
The Immigration Judge determined that the respondents were not credible and had filed
frivolous applications (I.J. at 19-25; Tr. at 179, 180). See section 208(d)(6) of the Immigration
and Nationality Act, 8U.S.C.§l158(d)(6); 8 C.F.R. § 1208.20. In reaching this conclusion, the
Immigration Judge relied on (a) the inconsistency between the lead respondent's testimony and
supporting death certificate showing that the lead respondent's brother was assassinated on
2003, and medical documentation from the Medical Hospital of Luanda showing that
the brother received medical treatment on 2003 (J.J. at 19-20; Tr. at 130-32, 138-39,
174; Exh. 8, Tabs 2, 3, 9); (b) the testimonial inconsistencies regarding whether the lead
respondent told the male respondent when she was in the military hospital in Angola, or when
she arrived in the United States, that she had been raped, and her father and brother had been
killed (l.J. at 20-21; Tr. at !08-10, 134, 164-65); (c) the implausibility of the lead respondent's
being treated by a military hospital for 16 days after military soldiers raped her (I.J. at 21-22;
Tr. at 139-40); (d) the implausibility of the male respondent's testimony that he did not know
whether his mother-in-law tmd sister-in-law are alive and living currently in the Democratic
Republic of the Congo when the lead respondent testified that she speaks regularly with these
family members (I.J. at 23-24; Tr. at 122-24, 169-70); (e) the male respondent's failure to file
any supporting documentation, particularly from his father (who lives unharmed in Angola and
with whom the male respondent has regular contact), his sister (who lives in Switzerland and
knows about the male respondent's difficulties in Angola), and Mr. (who secured his
release from detention) (I.J. at 22-23; Tr. at 167-68, 170-71; Exh. 3); and (t) the failure of the
lead respondent and male respondent to offer any reasonable explanation for the identified
inconsistencies, the implausible aspects of the case, and the male respondent's lack of sufficient
supporting documentation (I.J. at 19-20. 21-22, 23-24).
Based on the record before us, we will reverse the Immigration Judge's adverse credibility
and frivolousness rulings. See 8 C.F.R. §§ 1003.l(d)(3)(i), (ii). The Immigration Judge's
decision does not comport with Matter of B-Y-, 26 I&N Dec. 236 (BIA 2010), because the
Immigration Judge did not separately address the respondents' explanations for the identified
inconsistencies and implausibilities in the context of how those explanations may bear on the
materiality and deliberateness requirements applicable to the frivolousness determination.
Rather. the Immigration Judge erroneously dismissed the explanations as unpersuasive or against
logic, and stated that ·'the only conclusion that is left is to find that both respondents have
participated and collaborated in the creation of a very fabricated story in order to try to qualify
for asylum" (J.J. at 24).
3
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et al.
The Immigration Judge's conclusion that the lead respondent "made up a story in order to
qualify for asylum" is based on speculation (l.J. at 19). For example, the Immigration Judge
concluded that it "simply defied logic" that the lead respondent would be treated at a military
hospital if she were raped by soldiers O.J. at 21, 22). lbis conclusion is not based on record
evidence, and completely discounts the lead respondent's testimony that the church members
brought her to the military hospital because it was where the lead respondent could receive the
best medical treatment (Tr. at 139-40). Similarly, regarding the documentary inconsistency
pertaining to the date that the lead respondent's brother died, the lmmigration Judge speculated
when she found that "there is no possible way that a medical record could sustain having treated
a person who had died the day before" (l.J. at 20). The Immigration Judge did not give any
consideration to the possibility that the discrepancy regarding the date of the lead respondent's
brother's death was due to simple government error, perhaps associated with a lack of
development in Angola (Respondents' Br. at 9; Tr. at 138-39, 174).
Other areas of concern include the Immigration Judge's dismissal of the lead respondent's
arrest warrant (Exh. 8). Specifically, the Immigration Judge questioned the validity of the arrest
warrant because it categorized the lead respondent's family as victims yet still called for her
arrest (I.J. at 12; Exh. 8). We conclude that this reasoning, too, is based on speculation. We also
are not persuaded that the inconsistency regarding when the lead respondent told the male
respondent about the events in Angola was so "glaring" as to undermine the credibility of the
claim O.J. at 20-21).
The findings against the male respondent are also not sustainable. He filed a separate
application for withholding of removal pertaining to his own political and religious persecution
in Angola. The Immigration Judge found the male respondent to be not credible without
identifying any factual discrepancy going to the heart of his claim, much less one that is
sufficient to support a finding that the male respondent's application was frivolous.
Moreover, the Immigration Judge's finding that the male respondent "has failed to submit
any documentation to support his claim" is clearly erroneous (l.J. at 22-23). See 8 C.F.R.
§ 1003.l(d)(3)(i). The male respondent submitted a letter from , the man
who was grateful to the male respondent for saving his son from a life of drugs. The letter
corroborates the male respondent's testimony that Mr. was the person who obtained his
release from the military camp in Namibia (Exh. 12).
In light of the Immigration Judge's non-compliance with Matter of B-Y-, sllpra, and her
reliance on speculation, we reverse the adverse credibility determination and the frivolousness
finding. See 8 C.F.R. §§ 1003.I(d)(3)(i), (ii). Hence, we conclude that a remand is warranted
for a new decision on the merits ofboth respondents' claims.
On remand, treating both respondents as credible, the Immigration Judge should make clear
rulings regarding nexus, past persecution, corroboration, and future persecution (i.e., whether the
lead respondent has a well-founded fear of persecution, and whether the male respondent has a
clear probability of future persecution). With respect to whether the lead respondent sufficiently
demonstrated past persecution on account of a protected ground, the Immigration Judge should
consider all of the harm suffered, including the lead respondent's 2001 detention and beating for
4
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et al.
her participation in an anti-government demonstration, which the Immigration Judge apparently
did not consider in her prior decision. Further, the Immigration Judge should consider
Mr. 's letter in determining whether the male respondent provided sufficient evidence to
corroborate his claim. The respondents also should have an opportunity to apply for any other
relief for which they currently are eligible.
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and the entry of a new decision.
FOR THEBO
5
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Office for Immigration Review
File: - Atlanta, GA Date:
In re:
APPEAL
ON BEHALF OF RESPONDENT: Luis Alemany, Esquire
ON BEHALF OF DHS: Renae M. Hansell
Senior Attorney
ORDER:
MAY 302014
The respondent, a male native and citizen of Mexico has appealed an Inunigration Judge's
pretennission of his application of cancellation of removal based on a finding that he lacked I 0
years of continuous physical presence due to a border encounter on September 14, 2005. The
appeal will be sustained, and the record will be remanded for further proceedings.
The record contains a US-Visit printout, an official record of the Department of Homeland
Security (DHS), showing that the respondent was apprehended at the border and photographed
on September 14, 2005. However, we do not find that the docwnent presented is alone sufficient
to establish a break in the continuous physical presence under Matter ofAvilez-Nava, 23 I&N
Dec. 799 (BIA 2005). While the respondent's apprehension at the border is shown by the
document provided, it does not indicate on its face that the respondent was offered a voluntary
return in lieu of removal or that there was any other formal removal process. Accordingly, the
record is remanded to the Immigration Court for further consideration of the respondent's
eligibility for cancellation of removal and the entry of a new decision.
F RTHEBOARD
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File: - Atlanta, GA
Date:
FEB 20 2'1'.5
In re:
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Dustin R. Baxter, Esquire
APPLICATION: Cancellation ofremoval; remand
The respondent, a native and citizen of Peru, appeals from the Immigration Judge's decision
dated January 9, 2013, denying her application for cancellation of removal for certain
nonpermanent residents pursuant to section 240A(b)(l) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b)(l). The Department of Homeland Security has not responded to the appeal.
The appeal will be sustained.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. § 1003.1(d)(3)(ii). Because the respondent filed her cancellation of removal application
after May 11, 2005, it is governed by the provisions of the REAL ID Act. See Matter ofS-B-,
24 I&N Dec. 42 (BIA 2006).
The Immigration Judge denied the respondent's application for cancellation of removal on
the grounds that she did not establish that she has been a person of good moral character during
the relevant 10-year period (1.J. at 9). See section 240A(b)(l)(B) of the Act. Specifically, the
Immigration Judge found that the respondent was statutorily precluded from establishing good
moral character because she was placed under oath and swore that the contents of her Form
N-400, Application for Naturalization, were true and correct despite the fact that the application
contained false statements (l.J. at 5-8; Exh. 5, Tab B). See section 101(f)(6) of the Act, 8 U.S.C.
§ 1101(f)(6) (stating that one who has given false testimony for the purpose of obtaining a
benefit under the Act is precluded from establishing good moral character).
The Supreme Court has held that false testimony under section 101(f)(6) of the Act "is
limited to oral statements made under oath ... with the subjective intent of obtaining immigration
benefits." Kungys v. United States, 485 U.S. 759, 780 (1988). Hence, false statements which
appear in an application, even if the application bears a statement of oath, do not constitute
testimony within the meaning of section 101(f)(6) ofthe Act. Matter ofR-S-J-, 22 I&N Dec. 863
(BIA 1999); see also Matter ofBarcenas, 19 I&N Dec. 609, 612 (BIA 1988). Consequently, the
respondent is not precluded from establishing the good moral character requirement of section
240A(b)(l)(B) ofthe Act by virtue of section 10l(f)(6).
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In light of the foregoing, we will remand the record for the Immigration Judge to further
consider whether the respondent has met all of the appropriate statutory requirements for
cancellation of removal and whether she merits such relief in the exercise of discretion.
While the instant appeal was pending, the respondent filed a motion to remand to pursue an
application for adjustment of status based on an approved immigrant visa petition filed on her
behalf by her United States citizen daughter. Because the respondent's appeal will be sustained,
we do not reach her motion. However, on remand, both parties should be given the opportunity
to present additional evidence and arguments concerning the respondent's eligibility for
adjustment of status or any other form of relief. The following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for the entry ofa new decision.
2
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Executive' Office W.r Immigration Review
Falls Ch1Hch, Virginia 20530
File: - Atlanta, GA
Iu re:
APPEAL
ON BEHALF OF RESPONDENT: Kimberly Bandoh, Esquire
ON BEHALF OF DHS: Randall W. Duncan
Date:
APPLICATION: Asylum; withholding ofremoval; Convention Against Torture
JUN 192014
The respondent, a native and citizen of Guinea, appeals from an Immigration Judge's
decision dated January 23, 2013, denying her applications for asylum and withholding of
removal under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C.
§§ I 158 and 1231(b)(3), and her request for protection under the Convention Against Torture
("CAT"). See 8 C.F.R. §§ 1208.16-1208.18. The appeal will be dismissed in part, and the
record will be remanded.
made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues,
including issues of law, judgment or discretion. 8 C.F.R. 1003.l(d)(3)(ii). Since the
respondent's asylum application was filed after May I I, 2005, it is governed by the provisions of
the REAL ID Act. Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).
Initially, we note that the record supports the Immigration Judge's determination that the
respondent is ineligible for asylum for failing to timely file her application and for failing to
establish that she qualifies for an exception to the filing deadline. Section 208(a)(2)(B) of the
Act; 8 C.F.R. §§ 1208.4(a)(4) and (5). The Immigration Judge used March 24, 2009, the date the
respondent was placed in removal proceedings, as the date after which the asylum application
must be filed within a reasonable time. However, the Immigration Judge took note that the
respondent filed her asylum application in August of 2011, well after her entry into the
United States in 2000, and well after the March 24, 2009, date. Moreover, we note that the
respondent did not file her asylum application within a reasonable time after her daughters'
births in the United States in of2001, of2002, and of2009. Even taking
into consideration the respondent's argument that the Immigration Judge at her master calendar
hearing, on March 16, 2010, led her to believe that the application did not need to be filed until
later,
1
we conclude that the respondent has not adequately explained why she did not attempt to
1
We note, however, that the Immigration Judge at the master calendar hearing also suggested
that the asylum application might already be time-barred because of the amount of time that had
passed since the respondent's entry (Tr. at 3).
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file before that hearing (by which time almost a year already had elapsed since the service and
filing of the Notice to Appear), which potentially could have been accomplished if she had
moved for an earlier master calendar hearing date and cited "imminent ineligibility for relief' as
the reason. See Immigration Court Practice Manual, section 5.IO(b). For these reasons, the
respondent's asylum application was properly found untimely and she has not established that
she is eligible for an exception.2
However, as to the respondent's remaining applications for withholding of removal under the
Act and protection under the CAT, the lmmigration Judge's decision lacks a clear credibility
finding. Specifically, the Immigration Judge initially noted in her decision, in regard to the
respondent, that she "had absolutely no reason to believe that she had not" undergone female
genital mutilation ("FGM"). Moreover, the Immigration Judge held that the respondent had
"identified a particular social group which identifies her as a member of a group of persons
[belonging to the Fula tribe in Guinea] who have been subjected to FGM" (I.J. at I0).
Furthermore, the Immigration Judge noted that the Department of Homeland Security ("DHS"')
agreed that "her word would be accepted, that she had been subjected to FGM" (I.J. at 4).
However, the Immigration Judge later found there were issues with the respondent's credibility.
Specifically, based on the respondent's testimony and corroborating evidence, the Immigration
Judge doubted whether the respondent had been subjected to FGM (I.J. at 11-14). She held that
the respondent "has failed to establish that she would be subject or that she was subject in fact to
FGM ..." (l.J. at 14). Similarly, while the Immigration Judge initially noted that Doctor
Williams' letter indicated that the respondent was subjected to FGM (I.J. at 4; Exh. 7B), the
Immigration Judge later stated that the documentation in the record is contradictory (I.J. at 13;
Exh. 7B, JOE).
Consequently, it is necessary to remand the record for preparation of a new decision by the
Immigration Judge. On remand the Immigration Judge should make new specific findings
regarding credibility; determine whether it is necessary for the respondent to corroborate her
claim, and whether she has done so; make clear findings of fact; and issue a new decision.
Furthermore, if the Immigration Judge determines that the respondent established past
persecution, she is entitled to a presumption that her life or freedom would be threatened in the
future. See 8 C.F.R. §§ 1208.16(b)(l), (b)(3)(ii) (providing that upon a showing of past
persecution, the burden shifts to the OHS to prove by a preponderance of the evidence that there
are fundamentally changed circumstances such that the respondent's life or freedom would no
longer be threatened, or that the respondent could avoid future persecution by relocating, and that
it would be reasonable to do so under the circumstances); A1atter ofD-1-Af-, 24 I&N Dec. 448,
450 (BIA 2008). With regard to past persecution, we note that our governing precedent
recognizes that FGM is "deplorable and exiremely harmful" and that "[i]t is difficult to think ofa
situation, short ofa claimant asserting that she did not consider FGM to be persecution," where a
severe form ofFGM would not ''rise to the level ofpersecution." Matter ofA-T-, 25 I&N Dec. 4,
10 (BIA 2009) (citing case law).
In the remanded proceedings, the parties should be permitted an opportunity to present
additional evidence relevant to the respondent's claims to withholding of removal under the Act
2
We note that as the respondent is ineligible for asylum, she is also ineligible for humanitarian
asylum. 8 C.F.R. § !208.13(b)(l)(iii).
2
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and protection under the CAT, including testimony and updated country condition material, as
well as the documentation that the respondent has submitted on appeal. We express no opinion
regarding the merits ofthese claims for relief. Accordingly, the following order will be entered.
ORDER: The appeal is dismissed in part, and the record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion, and the entry of a new
decision.
FOR THE BOARD
3
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Executive Office for Immigllltion Review
Falls Chureh, Vll'ginia 20530
File: -Atlanta, GA
In re:
APPEAL AND MOTION
Date:
ON BEHALF OF RESPONDENT: James Ten Broeck, Esquire
ON BEHALF OF DHS: Gene Hamilton
APPLICATION: Remand; continuance; change ofvenue
MAY 292014
The respondent filed a timely appeal of the Immigration Judge's decision dated
January Z8, 2013, denying his requests for a change ofvenue and a continuance. On appeal, the
respondent argues that he was denied due process at his hearing held January 28, 2013, at which
he appeared pro se. At his last hearing, the respondent requested a change venue to Chicago,
where his attorney was located, or in the alternative asked to be given more time to obtain
counsel in Atlanta (I.J. at 2; Tr. at 28-29, 37, 44-46). He states that he wished to pursue a section
212(c) waiver and deferral ofremoval under the Convention Against Torture, 8 C.F.R. § 1208.17
(Notice ofAppeal). During the pendency ofbis appeal, the respondent bas also tiled a motion to
remand, attaching a completed application for asylum and withholding ofremoval (Form 1-589)
with supporting docurnentation, including country information. He also points out that the
Immigration Judge did not ask him at the hearing held January 28, 2013, whether he feared
returning to Mexico (Motion to Remand; Tr. at 23-47). Due to the circumstances presented in
this case, we find that a remand is warranted. Accordingly, the record will be remanded to the
Immigration Judge for further proceedings consistent with the foregoing opinion, considering the
respondent for any foTil!s ofrelieffor which he may be eligible, and the entry ofa new decision.
consistent with the foregoing opinion.
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Jn re:
APPEAL
ON BEHALF OF RESPONDENT: Ellis D. Bingham III, Esquire
ON BEHALF OF DHS: Greg Radics
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8U.S.C.§l182(a)(6)(A)(i)] -
Present without being admitted or paroled (conceded)
Sec. 212(a)(9)(B)(i){ll), J&N Act [8U.S.C.§I182(a)(9){B)(i)(II)] -
Previously unlawfully present for a year or more (conceded)
APPLICATION: Adjustment of status; cancellation of removal
SE:' 1 52014
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
January 31, 2013, decision finding him statutorily ineligible for adjustment of status pursuant to
section 245(i) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1255(i), and cancellation
of removal for certain non-permanent residents pursuant to section 240A(b) of the Act. His
appeal will be sustained and the record will be remanded for further proceedings consistent with
this decision.1
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
§ 1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of Jaw, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).
The relevant facts in this case are not in dispute. The respondent initially entered the
United States without inspection in 1989 and remained in this country until December 1999
when he returned to Mexico (l.J. at 3; Exhs. l, 5). Thereafter, he reentered the United States
1
The Immigration Judge granted the respondent's request for post-conclusion voluntary
departure pursuant to section 240B(b) of the Act, 8 U.S.C. § 1229c(b), conditioned upon
payment of a voluntary departure bond (I.J. at 4). Although the record will be remanded, we
note that the respondent submitted proof that he timely paid the requisite bond.
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without inspection in January 2000 (I.J. at 3; Tr. at 69; Exhs. 1, 5). Then, on December 14,
2007, he was served with a Notice to Appear (NTA), initiating these removal proceedings (l.J. at
2; Exh. 1).
Based on the respondent's entries and departures, the Immigration Judge concluded that he
does not have the requisite 10 years of continuous physical presence to qualify for
cancellation of removal (I.J. at 3). See section 240A(b)(l)(A) of the Act (requiring that an
applicant for cancellation of removal as a non-permanent resident establish l0 years of
continuous physical presence); section 240A(d) of the Act (explaining that the service of the
NTA terminates the accrual of continuous physical presence). Specifically, she found that the
respondent began to accrue continuous physical presence when he returned to the United States
in January 2000, but that he did not acquire the requisite 10 years between his January 2000
entry and the December 2007 service of the NTA (I.J. at 3). In addition, she concluded that the
respondent's acknowledged entries and departures (in addition to his concession with respect to
the charge contained on the NTA under section 212(a)(9)(B), 8 U.S.C. § l 182(a)(9)(B)) render
him inadmissible for purposes of adjustment of status (I.J. at 2-3). Based on this inadmissibility,
the Immigration Judge concluded that the respondent requires a waiver under section
212(a)(9)(C) ofthe Act to be adjustment eligible and that such a waiver must be obtained prior to
his reembarkation to the United States (I.J. at 3). Because the respondent illegally reentered the
United States in January 2000 without first obtaining the waiver, the Immigration Judge
concluded that he is statutorily barred from adjusting his status under section 245(i) of the Act
(I.J. at 3).
Starting with the respondent's cancellation eligibility, we note that a departure from the
United States will not interrupt the accrual of continuous physical presence unless (1) it is
a single absence exceeding 90 days, (2) results in aggregate absences from the United States
exceeding 180 days, or (3) is undertaken voluntarily in lieu ofremoval proceedings. See section
240A(d)(l) of the Act (discussing individual and aggregate absences as interrupting the accrual
of continuous physical presence); see also Matter of Romalez, 23 I&N Dec. 423 (BIA 2002)
(explaining that continuous physical presence is deemed to end at a time when the respondent is
compelled to depart the United States under threat of the institution of removal proceedings).
We agree with the respondent that there is no indication from the record that he departed under
threat of formal removal (Resp. Brief at 4). Moreover, although the Immigration Judge did not
make factual findings regarding his specific dates of travel, assuming he departed the
United States on December I, 1999, and returned on January 31, 2000, this single absence would
not exceed 90 days (l.J. at 3; Tr. at 69; Exhs. 1, 5). Finally, we note that the Immigration Judge
did not make factual findings regarding any additional absences from the United States (l.J. at 3;
Resp. Brief at 3). Accordingly, we agree with the respondent that the Immigration Judge erred
as a matter of law in pretermitting his cancellation application by finding that his period of
continuous physical presence began in January 2000 (I.J. at 3; Resp. Brief at 3-4). Therefore,
remand of the record is necessary to allow the respondent to further pursue his cancellation
application and for the Immigration Judge to otherwise assess his statutory and discretionary
eligibility for this form ofrelief.
Turning to the respondent's application for adjustment of status, he maintains that he is
statutorily eligible to adjust under section 245(i) of the Act, notwithstanding his inadmissibility
2
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under section 212(aX9)(B) of the Act, as a section 245(i) adjustment "waives" the 212(a)(9)(B)
ground of inadmissibility (Resp. Brief at 4-5). In this regard, he relies on the rationale outlined
by the United States Court of Appeals for the Tenth Circuit in Padilla-Caldera v. Gonzales,
453 F.3d 1237 (I 0th Cir. 2005)(Padilla-Caldera I) (Resp. Briefat 4-5).
We are unpersuaded by the respondent's position for several reasons. First, his reliance on
Padilla-Caldera I, supra, is foreclosed by our precedent in Matter ofBriones, 24 I&N Dec. 355
(BIA 2007), wherein we clarified that an application to adjust status under section 245(i) of the
Act does not waive the grounds of inadmissibility set forth at section 212(a)(9) of the Act. In
addition, the Tenth Circuit no longer adheres to the rationale set forth in Padilla-Caldera I,
supra, and instead, the Tenth Circuit has subsequently elected to accord deference to our
decision in Jvfatter of Briones, supra. See Padilla-Caldera v. Holder, 637 F.3d 1140
(10th Cir. 2011) (Padilla-Caldera II). Moreover, the instant case arises within the jurisdiction of
the United States Court of Appeals for the Eleventh Circuit, such that any precedent from the
Tenth Circuit would not be controlling. Notably, there is no binding authority issued in the
Eleventh Circuit applying a rationale similar to Padilla-Caldera I, supra, or rejecting the
rationale outlined in Matter of Briones, supra, when addressing the interplay between the
2I2(a)(9) grounds of inadmissibility and the role of adjustment of status under section 245(i) of
the Act.
Notwithstanding the foregoing, we note the Immigration Judge here concluded that (and the
respondent conceded) the respondent is inadmissible under section 212(a)(9)(B)(i)(II) of the Act
(I.J. at 3). While we express no opinion as to whether additional grounds of inadmissibility
potentially bar the respondent's adjustment, we note that, contrary to the Immigration Judge's
decision in this matter, an alien inadmissible under section 212(a)(9)(B) of the Act is not
required to seek a waiver of inadmissibility pursuant to section 212(a)(9)(C) ofthe Act (I.J. at 3).
See, e.g., section 212(a)(9)(A)(iii) of the Act (discussing the role of obtaining permission from
the Attorney General prior to reembarkation into the United States in order to avoid triggering
the grounds of inadmissibility generally set forth at section 212(a)(9)(A) of the Act); section
212(a)(9)(B)(v) of the Act (discussing the requirements for obtaining a waiver of inadmissibility
under section 212(a)(9)(B) ofthe Act); section 212(a)(9)(C)(ii} of the Act (discussing the role of
obtaining the advance permission of the Secretary for the Department of Homeland Security
prior to reembarkation into the United States in order to avoid triggering the ground of
inadmissibility set forth at section 212(a}(9)(C)(i) ofthe Act); section 212(a)(9)(C)(iii) ofthe Act
{discussing the requirements for obtaining a waiver of inadmissibility under section 212(a)(9)(C)
of the Act in limited instances involving victims of domestic violence); see also
Matter ofTorres-Garci{l, 23 I&N Dec. 866 (BIA 2006).
Where an alien is inadmissible under section 2I2(a)(9)(B) of the Act, he may seek a waiver
of inadmissibility pursuant to section 212(a)(9)(B)(v) of the Act, without reference to whether he
sought advance permission to return to the United States, so long as he can demonstrate that he
has a spouse or parent who is a lawful permanent resident or United States citizen and that his
qualifying relative will suffer extreme hardship should he be refused admission. Accordingly,
upon remand, should the Immigration Judge conclude that the respondent is otherwise eligible to
adjust his status and that this is the sole 212(a}(9) ground of inadmissibility barring his
adjustment, she will permit him to pursue a waiver of inadmissibility under section
3
(b) (6)

- - - - - - - -
212(a)(9)(B)(v) of the Act to the extent that he can establish his statutory eligibility for the
waiver.2
Accordingly, the following orders will be entered.
FURTIIER ORDER: The record is remanded for further proceedings consistent with this
order and for the entry ofa new decision.
2
Although we express no opinion as to the respondent's eligibility to presently adjust his status,
we take administrative notice of the fact that he seeks to adjust based on an approved Alien
Relative Petition (Form 1-130) filed on his behalf by his United States citizen father; accorded a
priority date of January 2, 2008; and designated as a first preference family-based petition
chargeable to Mexico (Exh. 5). In addition, the respondent's father previously filed a visa
petition on his son's behalfthat was accorded a April 5, 1993, priority date (Exh. 5). However, it
is oodisputed that this petition was filed when the respondent's father was a lawful permanent
resident and that the respondent married prior to his father's naturalization, such that the first
visa petition was automatically revoked by operation oflaw on 2000, the date of the
respondent's marriage (Resp. October 27, 2011, Docwnentary Submission; Exh. 5).
Accordingly, upon remand and in assessing the respondent's statutory eligibility for adjustment
of status, the Immigration Judge should determine whether a visa number is available to the
respondent.
4
(b) (6)
(b) (6)

. U.S. Department of Justice
Office for Immigration Review
File: -Atlanta, GA
In re:
APPEAL
Date:
MAR 232014
ON BEHALF OF RESPONDENT: Grace Kennedy, Esquire
ON BEHALF OF OHS: Kelley N. Sydnor
CHARGE:
Notice: Sec. 237(a)(l)(B), l&N Act [8 U.S.C. § 1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION:
237(a)(l)(C)(i), l&N Act [8 U.S.C. § 1227(a)(l)(C)(i)] -
Nonimmigrant - violated conditions of status
Cancellation of removal under 240A(b); continuance
The respondent, a native and c1t1zen of Ghana, has appealed from the Immigration
Judge's March 5, 2013, decision pretermitting her application for cancellation of removal under
section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The Immigration
Judge found that the respondent did not demonstrate eligibility for cancellation of
removal, because she did not meet her burden of showing good moral character. See
section 240A(b)(I )(B) of the Act. In particular, the Immigration Judge concluded that the
respondent gave false testimony under oath to a United States Citizenship and Immigration
Services ("USCIS") officer to obtain an immigration benefit in violation of section 10l{f)(6) of
the Act, 8 U.S.C. §I IOl(f)(6), in connection with an adjustment of status application. The
Department of Homeland Security has moved for a summary affirmance. The record will be
remanded.
We review the findings of fact, including the Immigration Judge's determination of
credibility, under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all
other issues, including whether the parties have met the relevant burden of proof, and issues
of discretion, under a de novo standard. 8 C.F.R. § l003.1 (d)(3)(ii); Matier of A-S-B-.
24 I&N Dec. 493 (BIA 2008). As the respondent's application was filed after May 11. 2005, it is
governed by the provisions of the REAL ID Act.
We are not persuaded that the record is sufficiently developed to conclude that the
respondent falsely testified under oath to gain an immigration benefit. On appeal, the respondent
correctly observes that section I01 (f)(6) of the Act, applies to false oral statements made
(b) (6)
(b) (6)

·
under oath and does not include false statements in an application. See Kungys i·. United States,
485 U.S. 759, 780 (1988); Matter of R-S-J-, 22 l&N Dec. 863, 865 (BIA 1999);
Marter ofl-D-E-, 8 I&N Dec. 399 (BIA 1959). Notv'v'ithstanding the respondent's failure to
identif)' her children on her adjustment of status application, at her hearing she consistently
denied that she verbally lied to a USCIS official about having children (Tr. at 58, 68, 70;
Exh. I 0). And while there is some evidence indicating that the respondent misrepresented the
nature of her relationship with her second husband - i.e. that their marriage was bona fide - the
record requires further development to find that the respondent violated section 101 (f)(6) of the
Act, as explained in Kungys v. United Slates. supra: Matrer of R-S-J-, supra; and
Malter ofL-D-E-, supra (Tr. at 55-56).
Consequently, we will remand the proceedings to the Immigration Judge for further
evaluation of whether the respondent violated section IOI (f)(6) of the Act. On remand, the
parties may submit any additional evidence or argument in support of their positions and the
Immigration Judge may consider any such additional evidence and argument appropriate to the
resolution of this matter.
ORDER: The record is remanded for further proceedings consistent with this decision and
the entry ofa new decision.
0 0=--2 j) L----:-----
FOR THE BOARD
2
(b) (6)

U.S. Department ofJustice
File: - Atlanta, GA
In re:
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Huiyue Qiu, Esquire
ON BEHALF OF DHS: Alfie Owens
ChiefCounsel
APPLICATION: Remand
Date:
AUG 1S2014
The respondent, a native and citizen of India, appeals from the Immigration Judge's decision
dated April 8, 2013. 1
The respondent argues that he was afforded ineffective assistance of
counsel, which we construe as a motion to remand. The motion will be granted and the record
will be remanded to the Immigration Judge for further proceedings.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
§§ 1003.l(d)(3)(i),(ii).
The record shows that the respondent waived appeal so that he could seek pre-conclusion
voluntary departure under section 240B(a)(l) of the Act, 8 U.S.C. § 1229c(a)(l). This Board is
without jurisdiction to consider an appeal ifan alien makes a knowing and intelligent waiver ofhis
appeal rights. However, this Board has held that an alien must understand the import of an
Immigration Judge's discussion of the right to appeal because it is not always evident that a
respondent comprehends the implications of accepting the decision as "final." See Matter of
Rodriguez-Diaz, 22 I&N Dec. 1320 (BIA 2000). Consequently, we have held that when an
effective waiver ofappeal did not occur we retain jurisdiction over that appeal.
The record in this case indicates that the respondent was given the opportunity to obtain
counsel and did in fact obtain counsel. Following a discussion between the Immigration Judge
and the parties, the respondent was advised by his counsel offthe record as to the alternatives and
the consequences of proceeding with an appeal or accepting a period ofvoluntary departure. Tr.
at 10-11. The record reflects that the respondent was informed of his appeal rights and he told
Immigration Judge that he did not wish to pursue an appeal. Tr. at IO. The respondent contends
that since he made his determination based on incorrect legal advice from his attorney, he did not
knowingly and intelligently waive his appeal rights.
1
The respondent does not challenge the removability finding, which was based on his written
pleadings (Exh. 2). See section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ l 182(a)(6)(A)(i).
(b) (6)
(b) (6)

. ' '
The respondent argues that his waiver of appeal was the result of ineffective assistance of
counsel. We have held that an alien must support a claim ofineffective assistance by submitting a
detailed affidavit, inform his previous attorney of the allegations of misconduct and provide the
attorney with an opportunity to respond, and state whether a complaint has been filed with the
appropriate disciplinary authorities with respect to the attorney's alleged violation of ethical or
legal responsibilities, and ifnot, why not. Matter ofLozada, 19 I&NDec. 637 (BIA 1988), ajf'd,
857 F.2d 10 (1st Cir. 1988). The respondent has complied with the framework discussed in
Lozada, supra.
The respondent's former counsel has conceded that a miscommunication led her to improperly
conclude that the respondent could not establish the requisite ten year period of continuous
physical presence for cancellation ofremoval. Based on this incorrect conclusion, the respondent
was persuaded to seek pre-conclusion voluntary departure and to waive appeal. Since the
respondent has shown that he did not make a knowing and intelligent decision in waiving appeal,
we conclude that we retain jurisdiction over the respondent's appeal. We further find that the
respondent has complied with the framework described in Lozada, supra, and based on the
evidence submitted on appeal we find that these proceedings should be remanded for the
Immigration Judge to determine his eligibility for cancellation ofremoval.
The following order will be entered.
ORDER: The appeal is sustained, and the record is remanded to the Immigration Judge for
further proceedings consistent with this decision.
OARD •
2
(b) (6)

U$, Department of Justice
In re:
APPEAL
ON BEHALF OF RESPONDENT: Meighan L. Vargas, Esquire
ON BEHALF OF DHS:
CHARGE:
Abby L. Meyer
FEB 21 2014
Notice: Sec. 212(a)(7)(A)(i)(D, I&N Act [8 U.S.C. § l 182(a)(7)(A)(i)(D] -
APPLICATION: Asylum; withholding ofremoval
The respondent, a native and citizen of Guatemala, appeals the Immigration Judge's
April 16, 2013, decision denying her applications for asylum and withholding of removal.
See sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158,
123l(b)(3); 8 C.F.R. §§ 1208.13, 1208.16. The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and (under the law ofthe Circuit with jurisdiction over this case) the likelihood of
future events, under a "clearly erroneous" standard. 8 C.F.R. § l003.l(d)(3)(i); see Zhu v. U.S.
Att 'y Gen., 703 F.3d 1303 (11th Cir. 2013). We review all other issues, including questions of
law, judgment, or discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). The
respondent's applications were filed after May 11, 2005, and therefore are governed by the
provisions ofthe REAL ID Act. Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).
Although the Immigration Judge made findings concerning a number of apparent
discrepancies between the respondent's testimony and the evidence ofrecord, and she found that
the respondent's account ofher past harm was implausible (LJ. at 12-15), the Immigration Judge
did not make lUl explicit finding concerning the respondent's credibility. The Immigration Judge
found that the respondent appeared to have a subjective fear of return to Guatemala (l.J. at 16),
and she acknowledged the respondent's testimony that she had no formal education (I.J. at 2).
While the record before the Immigration Judge reflects that the respondent has been diagnosed
with chronic post-traumatic stress disorder and moderate depression, the Immigration Judge did
not address these diagnoses in assessing the respondent's apparent testimonial and evidentiary
discrepancies Md omissions (l.J. at 2; Exh. 5, Tab 7).
Because the Immigration Judge's decision does not contain an explicit credibility
determination, the record contains insufficient findings of fact to permit us to review the
(b) (6)
(b) (6)

Immigration Judge's finding that the respondent has not met her burden of proof on her
applications for relief. Accordingly, we will remand the matter to the Immigration Judge for a
new decision that shall discuss the factors noted here and include an explicit credibility
determination. Given this result, we decline to address the remainder of the parties' appellate
arguments, and we express no opinion concerning the respondent's credibility or her ultimate
eligibility for relief from removal.
consistent with this order and for the entry ofa new decision.
2
(b) (6)

U:S. Department of Justice
Executive for. Immigration Review
File: - Atlanta, GA
In re:
APPEAL
Decision of the Board of hnroigration Appeals
Date:
OCT 112014
ON BEHALF OF RESPONDENT: Paul V. Balducci, Esquire
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § I 182(a)(6)(A)(i)] -
Present .vithout being admitted or paroled
April 25, 2013, decision pretermitting his application for cancellation of removal under section
240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(I). The respondent
contends that the Immigration Judge did not consider all of the evidence that he presented and
did not properly consider his request for administrative closure. We will remand the record of
proceedings to the Immigration Court.
As an initial matter, the Immigration Judge's decision contains no discussion or analysis of
the respondent's administrative closure request (Tr. at 20-21; Exhibit 6). Therefore, we have no
basis on which to review that determination. See Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002);
Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). On remand, the Immigration Judge should
analyze whether administrative closure is appropriate in this case, applying Matter ofAvetisyan,
25 I&N Dec. 688 (BIA 2012).
Because remand is necessary regarding the respondent's administrative closure request, we
decline to address the respondent's appellate arguments pertaining to the merits of his
cancellation of removal application. However, on remand, the Immigration Judge should clarify
whether, as indicated in her decision, "the Court was v:illing to receive" the documents and
testimony the respondent apparently attempted to present at the April 2013 hearing (I.J. at 3;
Tr. at 29-30, 32; Attachment to Respondent's Brief). If the evidence was excluded, the basis for
its exclusion should also be explained.
ORDER: The record of proceedings is remanded to lhe Immigration Court for further
proceedings consistent with lhe foregoing opinion and entry of a new decision.
(b) (6)
(b) (6)

U.S. DepartmGnt ofJustice
File: - Atlanta, GA
In re:
APPEAL
Decision ofthe Board oflmmigration Appeals
Date:
MAR 31 2D14
ON BEHALF OF RESPONDENT: Ellis D. Bingham III, Esquire
ON BEHALF OF DHS: Greg Radics
The respondent has filed an appeal from the Immigration Judge's decision deeming her
application for cancellation of removal abandoned. The Department of Homeland Security has
filed a motion for summary affinnance. The appeal will be sustained, the Immigration Judge's
decision will be vacated, and the record will be remanded.
The record establishes that on August 5, 2013, at the first master calendar hearing held before
the Immigration Judge in Atlanta, the Immigration Judge denied the respondent's motion for a
continuance. The continuance was requested so that the respondent could prepare and file her
cancellation of removal application. The Immigration Judge instead deemed the application
abandoned.1
In denying the respondent's motion for a continuance, the Immigration Judge cited
the fact that the respondent had been served with a Notice to Appear in September 2011, and also
that a prior master calendar hearing had been scheduled but cancelled due to the Immigration
Judge's absence. The Immigration Judge additionally considered that the law fmn representing
the respondent was not recently retained. No finding was made that the respondent had missed
any scheduled deadline or had ever been advised to bring her completed applications for relief to
the master calendar hearing.2
On appeal, the respondent correctly argues that it was not appropriate for the Immigration
Judge to deem the cancellation of removal application abandoned given that the hearing was the
first master calendar hearing before the Immigration Judge and given that the filing of the
application had never been addressed. The respondent correctly cites to numerous rules in the
Immigration Court Practice Manual that support her claim that, under the circumstances, she was
not on notice that her application was due at the August 5, 2013, master calendar hearing and
1
A different Immigration Judge, in New Orleans, had previously granted the respondent a
change of venue, but there is no transcript in the record to show that any hearings were held
before that Immigration Judge and there is no evidence indicating that any filing deadline was set.
2
The documents submitted on appeal reflect that the respondent filed her cancellation ofremoval
application with the U.S. Citizenship and Immigration Services on August 13, 2013.
(b) (6)
(b) (6)

·
that she should have been given an opportunity to file her application at a later date. The
respondent has established that good cause for a continuance was demonstrated at her hearing.
Accordingly, we will sustain the appeal, vacate the Immigration Judge's decision, and
remand the record to the Immigration Judge for further proceedings.
FURTHER ORDER: The Immigration Judge's decision is vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings to allow the respondent to pursue an application for cancellation ofremoval and any
other relief for which she may be eligible.
2
(b) (6)

•
. Falls Church, Virginia 20530
File: - Atlanta, GA
In re:
APPEAL
Date:
FEB 24 2015
ON BEHALF OF RESPONDENT: Richard Prinz, Esquire
APPLICATION: Asylwn; withholding ofremoval
The respondent, a native and citizen of El Salvador, appeals from the Immigration Judge's
decision dated September 5. 2013, denying her applications for asylum pursuant to section
208(b)(l)(A) of the Immigration and Nationality Act, 8U.S.C.§l158(b)(l)(A), and withholding
of removal pursuant to section 24l(b)(3) of the Act, 8 U.S.C. § 1231(b)(3). The Department of
Homeland Security opposes the appeal. The record will be remanded.
made by the Immigration Judge. 8 C.F.R. § 1003. l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. § 1003.l(d)(3)(ii). Because the respondent filed her asylum application after May I I,
2005, it is governed by the provisions of the REAL ID Act. See Matter ofS-8-. 24 l&N Dec. 42
(BIA 2006).
The respondent sought asylwn based on her membership in a particular social group
comprised of Salvadoran women who are subject to domestic violence and cannot leave the
relationship (1.J. at 8-9). The Immigration Judge denied the application as untimely and on the
basis that the respondent did not meet her burden of proof to demonstrate that she suffered past
persecution or that she has a well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. Because the
Immigration Judge did not make an explicit credibility finding, we will presume that the
respondent testified credibly. See section 208(b)(l)(B)(iii) of the Act.
As an initial matter, we are not persuaded that the respondent's asylum application is
time-barred (l.J. at 7-8). ·n1e respondent entered the United States on May 14, 2010 (l.J. at 7;
Exh. 1). Her Form 1-589, Application for Asylum and for Withholding of Removal, was not
filed with the Immigration Court until March 14, 2012 (l.J. at 7; Exh. 4). However, the record
reflects that the respondent expressed a fear of returning to El Salvador during a credible fear
interview on June 21, 2010 (l.J. at 7; Exh. JA). Moreover, the instant proceedings commenced
on July 6, 2010, and her initial hearing was not scheduled until February I, 2012 (Exh. I).
Considering the totality of the circumstances, we conclude that the respondent's asylum
(b) (6)
(b) (6)

· application is not time-barred. See sections 208(a)(2)(B), (D) of the Act; see also 8 C.F.R.
§§ 1208.4(a)(2), (4), (5).
Subsequent to the Immigration Judge's decision, we issued Matier of A-R-C-G-, 26 l&N
Dec. 388 (BIA 2014), in which we found that, depending on the facts and evidence of an
individual case, "married women in Guatemala who are unable to leave their relationship" can
constitute a cognizable particular social group under the Act. We also issued Matter of W-G-R-,
26 I&N Dec. 208 (BIA 2014) and Matter ofM-E-V-G-, 26 I&N Dec. 227 (BIA 2014), in which
we clarified the elements required to establish a cognizable particular social group. We stated
that an applicant for asylum or withholding of removal based on membership in a particular
social group must establish that the group I) is composed of members who share a common
immutable characteristic, 2) is defined with particularity, and 3) is socially distinct within the
society in question. See Matter ofW-G-R-, supra, at 212-18; Matter ofM-E-V-G-, supra. at 237.
In the instant case, the Immigration Judge did not have the benefit of our decisions in
Maller of A-R-C-G-, supra. Matier of M-E-V-G-. supra, and Matter of W-G-R-. supra.
Moreover, upon review of the record, we conclude that the respondent's credible testimony that
her former partner hit her and sexually assaulted her is sufficient to meet her burden of proof
without the need for additional corroborating evidence if she qualifies for asylum (Tr. at 51-53).
See section 208(b)(l)(B)(ii) ("The testimony of the applicant may be sufficient to sustain the
applicant's burden without corroboration"). Accordingly, we will remand the record to the
Immigration Judge to further consider whether the respondent's proposed social group meets the
requirements outlined in the above-cited decisions. On remand, the parties should be given the
opportunity to update the record and present additional legal arguments. In remanding, we
express no opinion on the ultimate outcome ofthese proceedings. See Matter ofL-0-G-, 21 l&N
Dec. 413 (BIA 1996). The following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further· proceedings
consistent with the foregoing opinion and for the entry ofa new decision.
2
(b) (6)

U.S. Department'of Justice
·Executive Office for Imrnigraiion Review
File: - Atlanta, GA
Date: MAR 25ZOl4
In re:
APPEAL
ON BEHALF OF RESPONDENT: Ellis D. Bingham, Ill, Esquire
ON BEHALF OF DHS:
CHARGE:
Sirce E. Owen
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. §I I82(a)(6)(A)(i)]-
Present without being admitted or paroled
APPLICATION: Cancellation ofremoval under section 240A(b) of the Act
decision of August 19, 2013. Jn that decision the Immigration Judge pretermitted the
respondent's application for cancellation of removal under section 240A(b)(I) of the
Immigration and Nationality Act, 8 U.S.C. §. 1229b(b)(l), and ordered the respondent removed.
The Department of Homeland Security (DHS) requests the Immigration Judge's decision be
summarily affirmed. The appeal will be sustained and the record remanded for further
proceedings.
We review Immigration Judges' findings of fact for clear error, and we review questions of
law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R. § 1003.l(d)(3)(i).
We conclude additional factual findings are necessary in this case. The Immigration Judge
found that the respondent was apprehended by immigration officials in December 2004 and was
fingerprinted and photographed, and the Immigration Judge concluded this necessarily meant
the respondent was subjected to a formal process to determine removability which ended the
respondent's continuous physical pre.serice. See Matter ofAvilez, 23 l&N Dec. 799 (BIA 2005).
However, the Immigration Judge did not provide the respondent an opportunity to submit
rebuttal evidence regarding his encounter with immigration officials in December 2004.
Additionally, the Immigration Judge did not make findings regarding whether the respondent's
apprehension was comparable to the "refusal to admit an alien at a land border port of entry" at
issue in Matter ofAvilez. Therefore, we find it appropriate to remand for additional development
1
The respondent contests the Immigration Judge's factual findings in this respect, as there is no
record in the documents that the respondent was fingerprinted in December 2004 (Exh. 3, Tab B
at 5). As we are remanding for additional factual findings, we do not need to consider whether
the Immigration Judge's prior factual findings were in error.
(b) (6)
(b) (6)

of the record. In remanding this decision, we intimate no opinion regarding the respondent's
ultimate eligibility for the requested relief or whether he merits such relief in the exercise of
discretion.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.
'- S) it?
FOHHE BOARD
2
·'··- ,
(b) (6)

.U.S. Department ofJustice
File: - Atlanta, GA
In re:
APPEAL
Date:
MAR 252015
ON BEHALF OF RESPONDENT: H. Glenn Fogle, Jr., Esquire
ON BEHALF OF DHS:
CHARGE:
Sirce E. Owen
Notice: Sec. 237(a)(J )(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)) -
In the United States in violation oflaw
APPLICATION: Voluntary departure
The respondent, a native and citizen of Ghana, appeals the Immigration Judge's decision,
dated August 19, 2013. The Department of Homeland Security ("DHS") filed a motion for
summary affinnance in this matter. The record will be remanded to the Immigration Judge.
The respondent argues on appeal that the amount of bond, which was set at $10,000 by the
Immigration Judge, was excessive. The respondent seeks an order vacating the Immigration
Judge's August 19, 2013, grant of voluntary departure and a remand with instructions to set a
reasonable voluntary departure bond.
An Immigration Judge may grant voluntary departure at the conclusion of proceedings if,
among other things, the alien has established by clear or convincing evidence that he has
the means to depart the United States and the intention to do so. 8 C.F.R. § 1240.26(c)(l)(iv).
"The Immigration Judge may impose such conditions as he or she deems necessary to ensure the
alien's timely departure from the United States." 8 C.F.R. § 1240.26(c). In all cases where
continued detention is not ordered as a condition of voluntary departure, an alien is required
to post a bond to assure his or her appearance for departure. Matter ofM-A-S-, 24 I&N Dec.
762 (BIA 2009); 8 C.F.R. § 1240.26(c)(3)(i). The Immigration Judge must post the bond "in an
amount necessary to ensure that the alien departs within the time specified, but in no case less
than $500." 8 C.F.R. § 1240.26(c)(3)(i). "An alien's failure to post the required voluntary
departure bond within the time required does not terminate the alien's obligation to depart within
the period allowed or exempt the alien from the consequences for failure to depart voluntarily
during the period allowed." 8 C.F.R. § 1240.26(c)(4). Only if an alien waives appeal does an
alien's failure to post the required voluntary departure bond within the time period allowed result
in the alternate order of removal taking effect immediately pursuant to 8 C.F.R. § 1241.l{f).
(b) (6)
(b) (6)

•.
·
Whiie the regulations provide that no appeal shall lie regarding the length of a period of
voluntary departure, they do not prohibit an appeal regarding the amount of bond required for a
grant of voluntary departure. 8 C.F.R. § 1240.26(g). As noted above, the purpose of the bond is
to assure the alien's appearance for departure, and the bond must be set at an amount that ensures
that the alien departs within the time specified, with the minimum bond to be set at $500.
Because the Immigration Judge did not specify why $10000 was necessary to ensure the
respondent's departure, we find that a remand is appropriate so that the Immigration Judge can
make explicit findings. See Matter of S-H-, 23 l&N Dec. 462 (BIA 2002) (stating that
Immigration Judges should include in their decisions clear and complete findings of fact that are
supported by the record and are in compliance with controlling law). If on remand, the
respondent withdraws her request for voluntary departure, the Immigration Judge should enter an
order ofremoval.
In view ofthe foregoing, the following order will be entered.
ORDER: The record will be remanded to the Immigration Judge for further proceed'.ings
consistent with the foregoing opinion and for the entry ofa new decision.
FORT ARD
2
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